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Geist: U.S. could claim millions of Canadian domain names in piracy battle

The U.S. Congress is currently embroiled in a heated debated over the Stop Online Piracy Act (SOPA), proposed legislation that supporters argue is needed to combat online infringement, but critics fear would create the “great firewall of the United States.”

SOPA’s potential impact on the Internet and development of online services is enormous as it cuts across the lifeblood of the Internet and e-commerce in the effort to target websites that are characterized as being “dedicated to the theft of U.S. property.” This represents a new standard that many experts believe could capture hundreds of legitimate websites and services.

For those caught by the definition, the law envisions requiring Internet providers to block access to the sites, search engines to remove links from search results, payment intermediaries such as credit-card companies and PayPal to cut off financial support, and Internet advertising companies to cease placing advertisements.

While these measures have unsurprisingly raised concern among Internet companies and civil society groups, the jurisdictional implications demand far more attention. The U.S. approach is breathtakingly broad, effectively treating millions of websites and IP addresses as “domestic” for U.S. law purposes.

The long arm of U.S. law manifests itself in at least five ways in the proposed legislation.

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First, it defines a “domestic domain name” as a domain name “that is registered or assigned by a domain name registrar, domain name registry, or other domain name registration authority, that is located within a judicial district of the United States.” Since every dot-com, dot-net and dot-org domain is managed by a domain name registry in the U.S., the law effectively asserts jurisdiction over tens of millions of domain names regardless of where the registrant actually resides.

Second, it defines “domestic Internet Protocol addresses” — the numeric strings that constitute the actual address of a website or Internet connection — as “an Internet Protocol address for which the corresponding Internet Protocol allocation entity is located within a judicial district of the United States.”

Yet IP addresses are allocated by regional organizations, not national ones. The allocation entity located in the U.S. is called ARIN, the Americas Registry for Internet Numbers. Its territory includes the U.S., Canada and 20 Caribbean nations. This bill treats all IP addresses in this region as domestic for U.S. law purposes.

To put this in context, every Canadian Internet provider relies on ARIN for its block of IP addresses. In fact, ARIN even allocates the block of IP addresses used by federal and provincial governments. The U.S. bill would treat them all as domestic for U.S. law purposes.

Third, the bill grants the U.S. in rem jurisdiction over any website that does not have a domestic jurisdictional connection. For those sites, the U.S. grants jurisdiction over the property of the site and opens the door to court orders requiring Internet providers to block the site and Internet search engines to stop linking to it.

Should a website owner wish to challenge the court order, U.S. law asserts itself in a fourth way, since in order for an owner to file a challenge (described as a “counter notification”), the owner must first consent to the jurisdiction of the U.S. courts.

If these measures were not enough, the fifth measure makes it a matter of U.S. law to ensure that intellectual property protection is a significant component of U.S. foreign policy and grants more resources to U.S. embassies around the world to increase their involvement in foreign legal reform.

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U.S. intellectual property lobbying around the world has been well documented with new Canadian copyright legislation widely viewed as a direct consequence of years of political pressure. The new U.S. proposal takes this aggressive approach to another level by simply asserting jurisdiction over millions of Canadian registered IP addresses and domain names.

Michael Geist holds the Canada Research Chair in Internet and e-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at www.michaelgeist.ca.

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